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https://www.brookings.edu/opinions/the-day-after-enforcing-the-hague-verdict-in-the-south-china-sea/The day after: Enforcing The Hague verdict in the South China Seahttp://webfeeds.brookings.edu/~/171790606/0/brookingsrss/topics/southeastasia~The-day-after-Enforcing-The-Hague-verdict-in-the-South-China-Sea/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=158619&post_type=opinion&preview_id=158619The U.N. arbitral tribunal's decision was an unequivocal rebuke of China’s expansive maritime claims and increasingly assertive posturing in adjacent waters. But, as Richard Heydarian argues, despite the Philippines' landmark victory, what is at stake is no less than the future of the regional security architecture.

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It was an unequivocal rebuke of China’s expansive maritime claims and increasingly assertive posturing in adjacent waters. An arbitral tribunal, constituted under Article 287, Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), handed the Philippines a landmark victory against its giant neighbor. Most experts anticipated a favorable outcome, but few predicted its breadth. Not only did the tribunal exercise jurisdiction on almost all of the Philippines’ arguments, it also ruled favorably on the most thorny and consequential items, particularly China’s doctrine of “historic rights.”

By skillfully limiting its case to questions of “sovereign rights” and maritime entitlement claims, the Philippines transformed the UNCLOS into a primary legal reference for resolving the South China Sea disputes. Unsurprisingly, China rejected the verdict with characteristic braggadocio, dismissing it as a “a piece of scrap paper” that is “null and void” in the view of the Chinese nation. It has insisted that the arbitration body has gone beyond its mandate by ruling against China’s claims in the South China Sea.

But as legal experts have argued, it is ultimately up to the arbitration bodies—not signatories—constituted under the aegis of the UNCLOS to decide whether they can exercise jurisdiction over a maritime dispute or not. Last October, the arbitration body flatly rejected China’s invocation of exemption clauses (Art. 298, Section 2, Part XV) under the UNCLOS.

Contrary to China’s claims, the verdict, in accordance to Article 296 as well as Article 11 of Annex VII of the UNCLOS, is final and binding. As a signatory to the convention, it is incumbent upon China to comply accordingly. But the question of enforcement has cast a long shadow on the momentary triumphalist deluge in Manila and other like-minded capitals, which welcomed the verdict as a milestone in promoting ruled-based resolution of maritime disputes.

No wonder the newly-inaugurated Rodrigo Duterte administration called for patience, sobriety, and self-restraint. Without the support of its key allies, particularly the United States and Japan, and regional players such as the Association of Southeast Asian Nations (ASEAN), the Philippines face an uphill battle in translating its de jurevictory into de factogains on the ground.

But what is at stake here isn’t only the Philippines’ interests within its exclusive economic zone (EEZ), but no less than the future of the regional security architecture. And this is precisely why the United States, which has taken up the cudgels for upholding international law by protecting freedom of navigation in global waters, should immediately ratify the UNCLOS. Otherwise, its moral authority as the anchor of East Asian order and emerging constrainment strategy against China will continue to come under question.

A Clean Sweep

The verdict didn’t fully nullify China’s expansive claims in adjacent waters, but it dramatically compressed it, at least in the eyes of international law. The tribunal ruled that China’s doctrine of “historic rights,” which serves as the basis of its “nine-dashed-line” claims, is “incompatible” with modern legal regimes, specifically the UNCLOS. In the tribunal’s assessment, “there was no evidence that China had historically exercised exclusive control over the waters or their resources.”

Since the UNCLOS and arbitration bodies under its aegis can’t exercise jurisdiction over territorial disputes, the tribunal fell short of determining the ownership of contested land features in the area. Yet, it further reduced China’s claims in the area by ruling that there are no naturally-formed “islands”—land features that can independently support human habitation—in the Spratlys.

Most land-features occupied by China, the court ruled, are low-tide-elevations, which can neither generate sovereignty claim nor enjoy maritime entitlements. Chinese-occupied land features such as the Johnson South Reef, Hughes Reef, and the Scarborough Shoal were determined as “rocks,” which can at most generate 12 nautical miles of territorial sea, but can’t generate their own EEZs.

With China not possessing even a single island in the Spratlys, the verdict made it clear that the Asian powerhouse doesn’t have any overlapping EEZs with the Philippines or other claimants (Brunei, Malaysia, Taiwan, and Vietnam all have competing claims in the Spratlys). China’s southernmost island province, Hainan, is located more than 600 nautical miles away. But what about China’s artificially-made islands in the Spratlys?

Not only are they legally inadmissible (see Article 60 of UNCLOS), the tribunal ruled, but they are also “incompatible with the obligations” of member states, “inflict[ing] irreparable harm to the maritime environment” and “destroy[ing] evidence of natural condition of features” in the Spratlys. The verdict also made it clear that China “violated the Philippines sovereign rights” by preventing the Southeast Asian country from enjoying its sovereign rights—from fishing to offshore oil and gas development—within its EEZ.

At a Crossroads

The verdict carries significant strategic implications. First of all, it has set an encouraging precedent for fellow ASEAN countries such as Vietnam and Indonesia, which have previously threatened to take China to court over the South China Sea disputes. Even Japan is considering compulsory arbitration against China in the East China Sea.

The verdict made it very clear that China enjoys no sovereign rights to exploit the marine and energy resources within the EEZs of a number of its ASEAN members, not only the Philippines. Even if none of China’s neighbors actually pursue a legal warfare strategy, these countries are in a strong position to credibly threaten Beijing with simultaneous, multiple arbitration cases.

This will be a soft power coup, a huge setback for China’s claim to regional leadership. If China fails to comply with the verdict, Manila can also ask the International Seabed Authority, constituted under the UNCLOS, to suspend existing permits it has granted China to extract seabed resources in international waters. Manila also has the option of filing additional arbitration cases against China if the latter unilaterally exploits hydrocarbon and other natural resources within the Philippines’ EEZ.

Aside from a potential “legal multiplier,” major naval powers such as the United States, Japan, India, France, and Australia can invoke the arbitration verdict as a basis to conduct multilateral and sustained freedom of navigation operations close to China’s artificially-created islands, many of which are actually built on low-tide elevations.

This way, responsible naval powers could “enforce” at least certain dimensions of the verdict, pushing back against China’s excessive claims and assertive posturing in the high seas.

So far, however, it seems that China’s threats and military patrols in the area are taming the passions of its neighboring states as well as the United States. Practically all countries in the region, including the Philippines and the United States, have called for calm and self-restraint. Only Japan had the audacity to explicitly remind China that, “the tribunal’s award is final and legally binding…the parties to this case are required to comply.” ASEAN failed to come up with a joint statement in the wake of the verdict, even if its earlier statements, particularly at the Sunnylands Summit, reiterated the importance of rule-based resolution of the disputes in accordance to the UNCLOS.

Philippine President Duterte, meanwhile, has made it clear that it is opting for a “soft landing” with China, and interested in launching direct talks with the Xi Jinping administration. He has refused to taunt Beijing by flaunting the verdict, partly to avoid further escalation, but also in the interest of reviving bilateral investment ties, which have suffered in recent years.

For now, it seems, the Philippines’ strategy is to leverage the verdict as a bargaining chip in prospective bilateral talks. Months earlier, China first asked the Philippines to drop the arbitration case and now, reportedly, to set it aside in any prospective bilateral talks with its Southeast Asian neighbor. Since Beijing is clearly aware of how much the verdict means to Manila, which invested considerable diplomatic and political capital in its legal attack, most likely China’s hardline position is for domestic political consumption, given how the Communist Party took an unequivocal position that the verdict is “null and void.”

The Duterte administration has called for unconditional talks, adamant that the verdict should be a basis for any bilateral dialogue. Despite the tough rhetoric adopted by both sides, plans for bilateral talks are set to proceed with former President Fidel Ramos, who deftly managed the South China Sea disputes in the mid-1990s, tapped as a potential special envoy to restart high-level bilateral talks with China.

However, there is no assurance that China is willing to compromise without concerted international pressure, led by no less than the United States with the support of key regional players such as ASEAN.

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It was an unequivocal rebuke of China’s expansive maritime claims and increasingly assertive posturing in adjacent waters. An arbitral tribunal, constituted under Article 287, Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), handed the Philippines a landmark victory against its giant neighbor. Most experts anticipated a favorable outcome, but few predicted its breadth. Not only did the tribunal exercise jurisdiction on almost all of the Philippines’ arguments, it also ruled favorably on the most thorny and consequential items, particularly China’s doctrine of “historic rights.”
By skillfully limiting its case to questions of “sovereign rights” and maritime entitlement claims, the Philippines transformed the UNCLOS into a primary legal reference for resolving the South China Sea disputes. Unsurprisingly, China rejected the verdict with characteristic braggadocio, dismissing it as a “a piece of scrap paper” that is “null and void” in the view of the Chinese nation. It has insisted that the arbitration body has gone beyond its mandate by ruling against China’s claims in the South China Sea.
But as legal experts have argued, it is ultimately up to the arbitration bodies—not signatories—constituted under the aegis of the UNCLOS to decide whether they can exercise jurisdiction over a maritime dispute or not. Last October, the arbitration body flatly rejected China’s invocation of exemption clauses (Art. 298, Section 2, Part XV) under the UNCLOS.
Contrary to China’s claims, the verdict, in accordance to Article 296 as well as Article 11 of Annex VII of the UNCLOS, is final and binding. As a signatory to the convention, it is incumbent upon China to comply accordingly. But the question of enforcement has cast a long shadow on the momentary triumphalist deluge in Manila and other like-minded capitals, which welcomed the verdict as a milestone in promoting ruled-based resolution of maritime disputes.
No wonder the newly-inaugurated Rodrigo Duterte administration called for patience, sobriety, and self-restraint. Without the support of its key allies, particularly the United States and Japan, and regional players such as the Association of Southeast Asian Nations (ASEAN), the Philippines face an uphill battle in translating its de jure victory into de facto gains on the ground.
But what is at stake here isn’t only the Philippines’ interests within its exclusive economic zone (EEZ), but no less than the future of the regional security architecture. And this is precisely why the United States, which has taken up the cudgels for upholding international law by protecting freedom of navigation in global waters, should immediately ratify the UNCLOS. Otherwise, its moral authority as the anchor of East Asian order and emerging constrainment strategy against China will continue to come under question.
A Clean Sweep
The verdict didn’t fully nullify China’s expansive claims in adjacent waters, but it dramatically compressed it, at least in the eyes of international law. The tribunal ruled that China’s doctrine of “historic rights,” which serves as the basis of its “nine-dashed-line” claims, is “incompatible” with modern legal regimes, specifically the UNCLOS. In the tribunal’s assessment, “there was no evidence that China had historically exercised exclusive control over the waters or their resources.”
Since the UNCLOS and arbitration bodies under its aegis can’t exercise jurisdiction over territorial disputes, the tribunal fell short of determining the ownership of contested land features in the area. Yet, it further reduced China’s claims in the area by ruling that there are no naturally-formed “islands”—land features that can independently support human ... It was an unequivocal rebuke of China’s expansive maritime claims and increasingly assertive posturing in adjacent waters. An arbitral tribunal, constituted under Article 287, Annex VII of the United Nations Convention on the Law of the Sea ... https://www.brookings.edu/opinions/taiwan-must-tread-carefully-on-south-china-sea-ruling/Taiwan must tread carefully on South China Sea rulinghttp://webfeeds.brookings.edu/~/171790608/0/brookingsrss/topics/southeastasia~Taiwan-must-tread-carefully-on-South-China-Sea-ruling/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=158621&post_type=opinion&preview_id=158621Taipei’s claims are similar to Beijing’s. How it responds to the tribunal’s decision could put it at odds with its U.S. ally.

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Taipei’s claims are similar to Beijing’s. How it responds to the tribunal’s decision could put it at odds with its U.S. ally.

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Taipei's claims are similar to Beijing's. How it responds to the tribunal's decision could put it at odds with its U.S. ally.Taipei's claims are similar to Beijing's. How it responds to the tribunal's decision could put it at odds with its U.S. ally.https://www.brookings.edu/opinions/u-s-south-china-sea-policy-after-the-ruling-opportunities-and-challenges/U.S. South China Sea policy after the ruling: Opportunities and challengeshttp://webfeeds.brookings.edu/~/171790610/0/brookingsrss/topics/southeastasia~US-South-China-Sea-policy-after-the-ruling-Opportunities-and-challenges/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=158612&post_type=opinion&preview_id=158612In spite of the legal complexities of the South China Sea ruling, the verdict was widely seen as a victory of "right" over "might" and a boost for the rules-based international order that the United States has been championing. In reality, the ruling could also pose profound challenges for the future of U.S. South China Sea policy under the Obama administration and beyond.

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On July 12, the arbitral tribunal adjudicating the Philippines’ South China Sea case against China ruled unanimously and overwhelmingly in favor of Manila, determining that the extent of several parts of Beijing’s claim as well as its efforts to enforce it over the past few years were unlawful. As expected, in spite of its legal complexities, the verdict was widely seen as a victory of “right” over “might” and a boost for the rules-based international order that the United States has been championing. In reality, the ruling could also pose profound challenges for the future of U.S. South China Sea policy under the Obama administration and beyond.

Since the 1990s, the United States has been consistent in its general South China Sea approach that while it does not take a position on competing claims, it does have a view in how those claims are pressed and ultimately resolved. This position is in line with the preservation of key U.S. interests in the South China Sea, which include: safeguarding international norms like the freedom of navigation and overflight; fostering regional peace and stability; and preserving the credibility of the United States in the eyes of its allies, partners, friends, and adversaries.

Though the Obama administration has grown increasingly concerned about China’s assertive actions in the South China Sea in recent years, it has also been reluctant to let the issue disrupt U.S.-China cooperation on other fronts, drown out the voices of regional states, or dominate U.S. Asia strategy. Following from that, the administration’s approach has rested on three pillars. First, politically, Washington has encouraged claimant states to defuse tensions between themselves. Second, diplomatically, the United States has tried to knit together a group of concerned global actors willing to stand up for the rules-based international order and against Chinese assertiveness which undermines it. Third, militarily, Washington has sought to both build the capacity of Southeast Asian states as well as undertake its own efforts to resist Chinese aggression.

At first glance, the ruling would seem to be a boost for this three-pillared approach which provides new opportunities for interested actors. For claimants, the clarity on previously contentious issues such as China’s nine-dash line and the status of features now more clearly sets out the parameters for them to resolve their disputes with each other, a process that Washington would view favorably. As one senior State Department official put it in a briefing following the verdict, it could provide fertile ground for “diplomatic creativity” in the South China Sea. Beyond the claimants themselves, U.S. officials also hope that it could revitalize moribund talks towards an elusive, binding code of conduct in the South China Sea between China and the 10-member Association of Southeast Asian Nations (ASEAN).

For actors that have been trumpeting the value of a rules-based order in the face of China’s assertive actions, the tribunal’s verdict means that their interpretations have now been affirmed by a third party with final and binding legal authority, thereby boosting their weight and force. These countries, which include Japan, Australia, and the European Union, are part of an informal diplomatic coalition which Washington has helped form and that will now try to persuade Beijing to abide by the decision. Since the verdict itself lacks any sort of enforcement mechanism, the additional leverage the ruling gives this coalition is important as it seeks to convince Beijing to bring its policies in line with international law.

For Washington and a few of its allies and partners, the ruling also provides some additional clarity which can inform military decisions to be taken in line with stated principles and preexisting commitments. These include freedom of navigation operations (FONOPs), as well as patrols and exercises. To take just one example, with the tribunal finding that Mischief Reef—which China had seized from the Philippines in 1994—lies within Manila’s exclusive economic zone and on its continental shelf, the Chinese artificial island at Mischief Reef is no longer entitled to a 12 nautical mile territorial sea, and Washington and other willing actors have no obligation to even invoke innocent passage and can legally approach within 500 meters of the island.

Yet while the ruling does present opportunities for the United States and its allies and partners, they are also likely to confront a series of challenges as they attempt to seize the opportunities that the ruling presents.

First, getting parties to move towards resolving their disputes or even reducing tensions more generally is much more complex than it seems. For one, it is unclear that the parties have an incentive to move in this direction. Take China, for instance, which has just suffered a stinging legal defeat. To their credit, U.S. officials have gone out of their way to signal restraint to help China find the oft-cited “off-ramp” in the South China Sea, which would see Beijing move to clarify its unlawful nine-dash line in some way and enter into talks with other claimants. Yet it is far from clear if China sees this as being in its own interest. On the one hand, the ruling, combined with the emergence of a more conciliatory government in the Philippines under President Rodrigo Duterte, would seem to empower those in China who believe that their country’s actions in the South China Sea have tarnished its image and that there may be an opportunity to now shift to a more moderate approach.

But on the other hand, the verdict could also lead China to initially take a series of steps to signal its resolve in protecting its sovereignty as well as to deter other ASEAN states from challenging it as Manila has done. As it is, we have already seen Beijing take a number of expected kinetic actions such as land civilian aircraft on several reefs and announce military exercises in the South China Sea. But China could also implement more provocative measures that would raise tensions rather than reduce them, including stepping up militarization of the Spratly Islands in violation of President Xi Jinping’s pledge in Washington, D.C. last September or even moving towards declaring an air defense identification zone (ADIZ) over the South China Sea. This would be in line with those of a more hawkish persuasion who are willing to take more risks in the South China Sea because they are convinced that China can bear the short-term costs of doing so.

Even if claimants choose to move toward resolving their disputes and reducing tensions, they may not necessarily do so in a way that is in line with American interests. Take the Philippines, which has emerged as a clear victor following the ruling with a Duterte administration that is in favor of talks with China to get bilateral ties back on track. There have already been worries among some in Philippine and U.S. diplomatic circles that the government may give in to certain Chinese demands that could undermine Philippine interests or even the U.S.-Philippine alliance, in spite of its insistence that it will ensure that talks are in line with the verdict. Needless to say, it will be difficult for Washington to wholeheartedly support Manila’s talks with Beijing if it comes at the expense of U.S.-Philippine security cooperation or even the ruling itself. Though these fears may end up being overstated, Duterte’s personal suspicion of the United States and his eagerness to strengthen economic ties with China to advance his ambitious domestic agenda thus far mean one cannot rule this possibility out.

Second, the ruling could reveal the fragility of the informal diplomatic coalition that Washington has helped assemble in defense of the rules-based international order. In the administration’s view, bringing to bear the strength of this coalition following the verdict requires aligning policies and coordinating actions between forward-leaning claimants like the Philippines, intra-regional interested actors such as Japan, and extra-regional concerned parties including the United States, in a calibrated way so that capable outside actors can do their part without getting out ahead of the claimants themselves. It also requires at least a few actors who are willing to impose costs on China if necessary through diplomatic, military, and, if necessary, economic measures as well to demonstrate that this coalition is prepared to act on its words.

That is easier said than done. For one, the lack of regional activism following the verdict could throw off the balance within this coalition between regional and outside actors, thereby bolstering Beijing’s claim that external forces led by the United States are trying to stir up trouble in the South China Sea.

This is not merely an existential concern. ASEAN, which has traditionally been divided on the South China Sea issue, has found it especially difficult to speak with one voice thus far in 2016. Last month, the organization failed to adopt a joint statement in Kunming with Cambodia as well as Laos, this year’s ASEAN chair—countries with little interest in the South China Sea and a lot invested in their relationships with China—backing out of a previously agreed document. Ahead of the upcoming ASEAN foreign ministers’ meeting later this week, hopes have all but evaporated for a separate statement on the verdict in spite of a clear case for issuing one. If Southeast Asian foreign ministers are unable to at least adopt a joint communiqué with strong South China Sea language in support of the principles undergirding the verdict—along the lines of what their countries already signed at the U.S.-ASEAN Sunnylands Summit back in February—that would further undermine the balance that the coalition needs.

Beyond words, the lack of action from other allies and partners in U.S.-led initiatives could also pose a potential challenge to the fragile coalition. Though several of the coalition’s key members—most notably Japan, Australia, and the European Union—have already issued statements in support of the ruling to various degrees, the true test of their commitment to safeguarding the rules-based order will be their willingness to contribute to measures that seek to enforce it, if and when it is necessary—particularly if Beijing ends up charting a more assertive course post-verdict. Depending on how things end up playing out, this could include not just regular patrols and exercises, but also potentially more forward-leaning and controversial ones as needed such as joint FONOPs. Hesitance by the United States’ most capable partners to enforce the ruling would both expose the gap between the coalition’s words and actions as well as reveal Washington’s isolation.

Third, the ruling could also end up raising questions about U.S. credibility on the South China Sea issue. In the lead up to the verdict, the United States used a mixture of unilateral military actions, bilateral dialogue, and capacity-building efforts to clearly signal to China that certain provocative moves—including starting reclamation at Scarborough Shoal or declaring a South China Sea ADIZ—could trigger an even stronger American response. Nonetheless, China could still end up crossing these “red lines” in the next few months after the verdict, challenging the outgoing Obama administration to either risk heightened tensions with China during an election year or have its credibility undermined.

While there are a whole range of Chinese moves that could throw U.S. credibility into question, actions that affect the Philippines directly would constitute a particular problem for Washington given the fact that Manila is a treaty ally and the United States has been repeatedly touting its “ironclad” commitment to the alliance. China could begin dredging at Scarborough Shoal, which lies just 185 nautical miles from Manila and could give it radar coverage of several facilities recently agreed between the United States and Philippines under their new Enhanced Defense Cooperation Agreement (EDCA). Or it could impose a blockade on Philippine marines stationed on the BRP Sierra Madre at Second Thomas Shoal to prevent its resupply as it did in 2014, which could turn bloody. Though there remains some ambiguity in Article V of the 1951 U.S.-Philippine Mutual Defense Treaty, should there be an attack on Philippine troops, vessels, or aircraft by China in any one of these instances, a reasonable reading indicates that United States would be committed to respond.

If the Obama administration fails to respond decisively to the very actions it has deemed unacceptable so soon after the verdict, it would once again prove that might ultimately does make right in the South China Sea. It would give credence to the view among some Chinese officials that the ruling “amounts to nothing more than a piece of paper,” as former state councilor and top diplomat Dai Bingguo told an audience in Washington, D.C. earlier this month. It could also serve to further embolden China in the South China Sea and elsewhere, which could feed into how Beijing deals with the next U.S. administration beginning in January 2017.

Of course, these challenges are not insurmountable. If China determines that it has an incentive to provide a more conducive environment for the rolling out of its new economic initiatives to Southeast Asian states, we could see Beijing eventually moving towards a more restrained posture in the South China Sea after an initial period of heightened tensions. That would then pave the way for the constructive initiatives that Washington would like to see, be it resolving disputes or repairing ties with the Philippines or making tangible progress on a code of conduct.

And even if Beijing opts to continue on its more assertive course, claimants and concerned actors in the region and beyond can take initial steps to both raise the costs of Beijing’s non-compliance as well as to discourage it from pursuing provocative actions. If ASEAN is able to forge at least a base consensus around the ruling’s principles and U.S. allies and partners like Japan, Australia, and the Philippines can commit to a series of measures to enforce the ruling, that would help put some real teeth around defending the rules-based order. And if the United States determines that China is moving towards crossing a red line, there may be opportunities for Washington to either deter this course before it occurs or at least attempt to dissuade cooler heads in Beijing against adopting such actions.

Ultimately, the clarity provided by the Hague verdict is a double-edged sword: The reputational costs of violating the rules-based order are now higher, but the pressure for its adherents to enforce it has also increased. It is up to the concerned countries to both seize the opportunities it offers and overcome the challenges it poses.

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On July 12, the arbitral tribunal adjudicating the Philippines’ South China Sea case against China ruled unanimously and overwhelmingly in favor of Manila, determining that the extent of several parts of Beijing's claim as well as its efforts to enforce it over the past few years were unlawful. As expected, in spite of its legal complexities, the verdict was widely seen as a victory of “right” over “might” and a boost for the rules-based international order that the United States has been championing. In reality, the ruling could also pose profound challenges for the future of U.S. South China Sea policy under the Obama administration and beyond.
Since the 1990s, the United States has been consistent in its general South China Sea approach that while it does not take a position on competing claims, it does have a view in how those claims are pressed and ultimately resolved. This position is in line with the preservation of key U.S. interests in the South China Sea, which include: safeguarding international norms like the freedom of navigation and overflight; fostering regional peace and stability; and preserving the credibility of the United States in the eyes of its allies, partners, friends, and adversaries.
Though the Obama administration has grown increasingly concerned about China’s assertive actions in the South China Sea in recent years, it has also been reluctant to let the issue disrupt U.S.-China cooperation on other fronts, drown out the voices of regional states, or dominate U.S. Asia strategy. Following from that, the administration’s approach has rested on three pillars. First, politically, Washington has encouraged claimant states to defuse tensions between themselves. Second, diplomatically, the United States has tried to knit together a group of concerned global actors willing to stand up for the rules-based international order and against Chinese assertiveness which undermines it. Third, militarily, Washington has sought to both build the capacity of Southeast Asian states as well as undertake its own efforts to resist Chinese aggression.
At first glance, the ruling would seem to be a boost for this three-pillared approach which provides new opportunities for interested actors. For claimants, the clarity on previously contentious issues such as China’s nine-dash line and the status of features now more clearly sets out the parameters for them to resolve their disputes with each other, a process that Washington would view favorably. As one senior State Department official put it in a briefing following the verdict, it could provide fertile ground for “diplomatic creativity” in the South China Sea. Beyond the claimants themselves, U.S. officials also hope that it could revitalize moribund talks towards an elusive, binding code of conduct in the South China Sea between China and the 10-member Association of Southeast Asian Nations (ASEAN).
For actors that have been trumpeting the value of a rules-based order in the face of China’s assertive actions, the tribunal’s verdict means that their interpretations have now been affirmed by a third party with final and binding legal authority, thereby boosting their weight and force. These countries, which include Japan, Australia, and the European Union, are part of an informal diplomatic coalition which Washington has helped form and that will now try to persuade Beijing to abide by the decision. Since the verdict itself lacks any sort of enforcement mechanism, the additional leverage the ruling gives this coalition is important as it seeks to convince Beijing to bring its policies in line with international law.
For Washington and a few of its allies and partners, the ruling also provides some additional clarity which can inform military decisions to be taken in line with stated principles and preexisting commitments. These include freedom of navigation operations (FONOPs), ... On July 12, the arbitral tribunal adjudicating the Philippines’ South China Sea case against China ruled unanimously and overwhelmingly in favor of Manila, determining that the extent of several parts of Beijing's claim as well as its efforts ... https://www.brookings.edu/media-mentions/new-york-times-jul-14-2016/New York Times – Jul 14, 2016http://webfeeds.brookings.edu/~/171790612/0/brookingsrss/topics/southeastasia~New-York-Times-Jul/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=182226&post_type=media-mention&preview_id=182226

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https://www.brookings.edu/2016/07/13/the-south-china-sea-ruling-and-chinas-grand-strategy/The South China Sea ruling and China’s grand strategyhttp://webfeeds.brookings.edu/~/171790614/0/brookingsrss/topics/southeastasia~The-South-China-Sea-ruling-and-China%e2%80%99s-grand-strategy/
Wed, 13 Jul 2016 15:40:00 +0000http://www.brookings.edu?p=174101&preview_id=174101In the wake of the International Tribunal on the Law of the Sea's ruling this week, the question going forward is how China will respond. Will it double down on the aggressive and coercive activities of the past six years, behavior that has put most of its East Asian neighbors on guard? Will it continue to interpret the Law of the Sea in self-serving ways that very few countries accept? Or, might China recognize that its South China Sea strategy has been an utter failure and that its best response is to take a more restrained and neighborly approach?

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The International Tribunal on the Law of the Sea has ruled on the case that the Philippines brought in 2013, challenging China’s claims and behavior in the South China Sea. International lawyers and the policy commentariat has judged the ruling as a sweeping victory for the Philippines and a significant loss for China, which refused to acknowledge the tribunal’s jurisdiction or to take part in the proceedings.

The question going forward is how China will respond. Will it double down on the aggressive and coercive activities of the past six years, behavior that has put most of its East Asian neighbors on guard? Will it continue to interpret the Law of the Sea in self-serving ways that very few countries accept? Or, might China recognize that its South China Sea strategy has been an utter failure and that its best response is to take a more restrained and neighborly approach?

What got us here?

Critical as the next weeks and months will be, it is also useful to take a look back and examine recent events in the broad context of Chinese foreign and security policy over the last four decades. The premise of that reform policy, initiated in the late 1970s and early 1980s, was that a weak China could best ensure its security by engaging and accommodating the international community, in order to gradually build up all aspects of its national power. The most clear-cut feature of this strategy was to join the global economy: China accepted the leadership of the IMF and World Bank; opened the Chinese economy to international trade and investment; carved out critical roles in global supply chains; accepted the liberalization disciplines of the World Trade Organization; and, more recently, began to provide public goods to other developing economies. Not everyone has benefitted from China’s economic engagement, but on balance it has been a signal success.

China’s reformist leaders also recognized the value of taking an accommodating stance toward its East Asian neighborhood, of which the United States is a part. One side of accommodation was to execute a skillful diplomacy designed to reduce tensions and avoid conflict unless Beijing’s fundamental interests were under threat. Accommodation’s other side was to delay the modernization of the Chinese military and exercise restraint in the use of those capabilities that it did create. This made sense because China both lacked the power to challenge the United States and Japan militarily and needed the help of those and other countries to grow economically.

That approach changed in the early 2000s, when Beijing judged that it would only be secure if it expanded its eastern and southern strategic perimeters into the East and South China Seas. That judgment had its own logic, which maritime territorial disputes and reports of maritime energy and mineral resources only intensified. Thus began a program to build the capabilities to project power into the maritime domain and then use them to press its claims. That campaign created frictions with its neighbors. An increasingly overbearing diplomacy didn’t help China’s reputation either.

It’s your move, China

Another part of China’s grand strategy has been to integrate itself in the system of international institutions, law, norms, and regimes—both global and regional. This step did not signify a fundamental acceptance of the international order that had emerged and evolved after World War II. Rather, it reflected a belief that China could and should use institutions, law, norms, and regimes to protect China’s interests against hegemonic behavior by others, particularly the United States. (Conversely, the “West” believed that binding Beijing to “its” order would restrain Chinese bad behavior.)

The tribunal’s decision on the Philippines case was a clear blow to China’s long-standing strategy to use international law to advance or protect its interests, prompting feelings of buyer’s remorse. The hardy perennial that China has been the victim of humiliation at the hands of Western countries will only add to the resentful reaction. Of course, China rejects the widely-held view that it is bound by the ruling even though it did not participate in the case. Also, this is a court with no enforcement powers, so Beijing could simply ignore the ruling and use its military and law enforcement assets to continue its past pattern of aggressive and coercive actions—essentially increasing the salience of its military power. That course of action would only further push the test of wills between it and Washington, even though neither benefits from a downward spiral of increased competition and conflict.

Beijing could simply ignore the ruling…That course of action would only further push the test of wills between it and Washington, even though neither benefits from a downward spiral of increased competition and conflict.

China could go even further than simply doubling down. Contrary to the tribunal’s ruling, it could treat the Spratly Islands as islands under international law; define them as a single unit for purposes of defining maritime boundaries; accordingly draw straight baselines around them; then declare for itself an exclusive economic zone that covered most of the waters of the South China Sea; and finally, over time, challenge the rights of other countries to freedom of navigation and the exploitation of natural resources. For the lay-reader, what is important here is that none of these actions would accord with the widely accepted principles of the Law of the Sea. (Ultimately, China might someday insist to the countries of East Asia that it will no longer tolerate their relying on China for economic prosperity and depending on the United States for security.)

On the other hand, China could conduct a serious assessment of how it has exercised its diplomatic, coercive, and legal power over the last half-decade. Is China really more secure after alienating its East Asian neighbors through heavy-handed diplomacy, stimulating a very public coercive counter-response from the United States (too public in my view), and suffered a significant defeat in the international court of law? Might a tactical retreat at this stage, including a recommitment to international law and institutions, better serve China’s strategic interests than more domineering behavior?

A key principle of Chinese diplomatic statecraft beginning in the 1980s was taoguang yanghui, a phrase that basically means to exercise restraint as one steadily builds one’s power. The Chinese national security establishment has forgotten that principle as it conducted its recent policy towards the South China Sea. It would do well to revive it.

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UncategorizedThe International Tribunal on the Law of the Sea has ruled on the case that the Philippines brought in 2013, challenging China's claims and behavior in the South China Sea. International lawyers and the policy commentariat has judged the ruling as a sweeping victory for the Philippines and a significant loss for China, which refused to acknowledge the tribunal's jurisdiction or to take part in the proceedings.
The question going forward is how China will respond. Will it double down on the aggressive and coercive activities of the past six years, behavior that has put most of its East Asian neighbors on guard? Will it continue to interpret the Law of the Sea in self-serving ways that very few countries accept? Or, might China recognize that its South China Sea strategy has been an utter failure and that its best response is to take a more restrained and neighborly approach?
What got us here?
Critical as the next weeks and months will be, it is also useful to take a look back and examine recent events in the broad context of Chinese foreign and security policy over the last four decades. The premise of that reform policy, initiated in the late 1970s and early 1980s, was that a weak China could best ensure its security by engaging and accommodating the international community, in order to gradually build up all aspects of its national power. The most clear-cut feature of this strategy was to join the global economy: China accepted the leadership of the IMF and World Bank; opened the Chinese economy to international trade and investment; carved out critical roles in global supply chains; accepted the liberalization disciplines of the World Trade Organization; and, more recently, began to provide public goods to other developing economies. Not everyone has benefitted from China's economic engagement, but on balance it has been a signal success.
China's reformist leaders also recognized the value of taking an accommodating stance toward its East Asian neighborhood, of which the United States is a part. One side of accommodation was to execute a skillful diplomacy designed to reduce tensions and avoid conflict unless Beijing's fundamental interests were under threat. Accommodation's other side was to delay the modernization of the Chinese military and exercise restraint in the use of those capabilities that it did create. This made sense because China both lacked the power to challenge the United States and Japan militarily and needed the help of those and other countries to grow economically.
That approach changed in the early 2000s, when Beijing judged that it would only be secure if it expanded its eastern and southern strategic perimeters into the East and South China Seas. That judgment had its own logic, which maritime territorial disputes and reports of maritime energy and mineral resources only intensified. Thus began a program to build the capabilities to project power into the maritime domain and then use them to press its claims. That campaign created frictions with its neighbors. An increasingly overbearing diplomacy didn't help China's reputation either.
It’s your move, China
Another part of China's grand strategy has been to integrate itself in the system of international institutions, law, norms, and regimes—both global and regional. This step did not signify a fundamental acceptance of the international order that had emerged and evolved after World War II. Rather, it reflected a belief that China could and should use institutions, law, norms, and regimes to protect China's interests against hegemonic behavior by others, particularly the United States. (Conversely, the “West” believed that binding Beijing to “its” order would restrain Chinese bad behavior.)
The tribunal’s decision on the Philippines case was a clear blow to China's long-standing strategy to use international law to advance or protect its interests, prompting feelings of buyer's ... The International Tribunal on the Law of the Sea has ruled on the case that the Philippines brought in 2013, challenging China's claims and behavior in the South China Sea. International lawyers and the policy commentariat has judged the ruling as a ... https://www.brookings.edu/2016/07/12/how-will-china-respond-to-the-south-china-sea-ruling/How will China respond to the South China Sea ruling?http://webfeeds.brookings.edu/~/171790616/0/brookingsrss/topics/southeastasia~How-will-China-respond-to-the-South-China-Sea-ruling/
http://webfeeds.brookings.edu/~/171790616/0/brookingsrss/topics/southeastasia~How-will-China-respond-to-the-South-China-Sea-ruling/#respondMon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=174097&preview_id=174097The arbitration panel deemed invalid virtually all of Beijing’s asserted claims to various islands, rocks, reefs, and shoals in the South China Sea, determining that Chinese claims directly violated the provisions of UNCLOS, which China signed in 1982. The biggest looming issues will focus on how China opts to respond.

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In a long-awaited ruling prepared under the United Nations Convention on the Law of the Sea (UNCLOS), an arbitration panel has handed an unequivocal victory to the Philippines in its case against China, which it first filed in early 2013. The arbitration panel deemed invalid virtually all of Beijing’s asserted claims to various islands, rocks, reefs, and shoals in the South China Sea, determining that Chinese claims directly violated the provisions of UNCLOS, which China signed in 1982.

From the outset of Manila’s initiation of the arbitration process, Beijing has refused to participate. However, it did issue a position statement of its own in late 2014, claiming that the arbitration panel violated various UNCLOS provisions and additional agreements signed by the two governments. As the arbitration neared its conclusion, China released a steady stream of editorials and commentaries, claiming that the ruling sought “to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.”

Beijing has repeatedly stated that “it does not accept any means of third party dispute settlement or any solution imposed on China.” At the same time, UNCLOS has no enforcement mechanism for carrying out the panel’s judgments. But Beijing’s repeated efforts at shaming and stonewalling have imposed an undoubted cost on its political standing in the region. Moreover, China’s signing of UNCLOS obligated Beijing to compulsory third party determination, though it is not the only power contesting this commitment.

Beijing’s repeated efforts at shaming and stonewalling have imposed an undoubted cost on its political standing in the region.

The fundamental weakness of China’s policy defense was its reliance on various “historic claims” to most of the maritime expanses of the South China Sea, including areas that directly encroached on the sovereign territory of various neighboring states. Its claims have frequently been encapsulated in the nine-dash line, an ill-defined geographic demarcation initially appearing in a map prepared by cartographers in the Republic of China in 1947 (i.e., prior to the victory of the Chinese Communist Party in 1949). But China’s sweeping claims to “unequivocal sovereignty” failed to address the multiple layers of ambiguity and conflicting judgments found in various policy documents released by Beijing.

Moreover, the arbitration panel emphasized from the outset that its authority did not extend to determinations over sovereignty. Rather, its mandate (distilled from a list of 15 claims in Manila’s original brief) focused on Chinese claims to the continental shelf and to exclusive economic zones extending from land features, reefs, and rocks over which China claimed indisputable sovereignty. The Philippines also contested Chinese activities that infringed on the rights of Filipino fishermen, Beijing’s construction of artificial islands, and the operation of Chinese law enforcement vessels in various shoals.

Even if Beijing persists in its angry defiance of the arbitration panel’s findings and continues to contest their legitimacy, the sweeping character of the rulings (in a document exceeding 500 pages in length) is impossible to deny. UNCLOS specifically states that land features not deemed an island are entitled only to a 12-mile territorial sea, not to an exclusive economic zone or to a continental shelf. In an especially controversial finding, the panel concluded that Itu Aba (known in Chinese as Taiping Island and the largest land feature in the Spratly Island group and controlled by Taiwan) was not an island; this has been strongly contested by Taipei as well as by Beijing.

The biggest looming issues will focus on how China opts to respond.

The biggest looming issues will focus on how China opts to respond in words and deeds. The arbitration proceeding has triggered strongly nationalistic responses from leaders and experts in China, with many alleging a hidden U.S. hand in the arbitration. American political and military support for the Philippines and other claimants and heightened U.S. air and maritime activities in the South China Sea—all justified as ensuring freedom of navigation in the vital waterways of the region—engenders additional angry responses from the Chinese leadership.

Beijing continues to insist that it is prepared to enter into bilateral negotiations with Manila over various disputed claims. But with China claiming indisputable sovereignty over various contested features and possessing maritime capabilities that vastly exceed those of any other claimants, will it be prepared to demonstrate flexibility, restrain its responses, and give any credence to the diligent labors of the arbitration panel? Can Beijing envision quiet diplomacy, either with the United States or with regional claimants, as opposed to seeing itself as the endlessly aggrieved party? If Beijing doesn’t exercise restraint and instead takes steps that heighten the risks, these could readily pose new threats to the regional maritime order that cannot possibly be in anyone’s interest.

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http://webfeeds.brookings.edu/~/171790616/0/brookingsrss/topics/southeastasia~How-will-China-respond-to-the-South-China-Sea-ruling/feed/0UncategorizedIn a long-awaited ruling prepared under the United Nations Convention on the Law of the Sea (UNCLOS), an arbitration panel has handed an unequivocal victory to the Philippines in its case against China, which it first filed in early 2013. The arbitration panel deemed invalid virtually all of Beijing’s asserted claims to various islands, rocks, reefs, and shoals in the South China Sea, determining that Chinese claims directly violated the provisions of UNCLOS, which China signed in 1982.
From the outset of Manila’s initiation of the arbitration process, Beijing has refused to participate. However, it did issue a position statement of its own in late 2014, claiming that the arbitration panel violated various UNCLOS provisions and additional agreements signed by the two governments. As the arbitration neared its conclusion, China released a steady stream of editorials and commentaries, claiming that the ruling sought “to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.”
Beijing has repeatedly stated that “it does not accept any means of third party dispute settlement or any solution imposed on China.” At the same time, UNCLOS has no enforcement mechanism for carrying out the panel’s judgments. But Beijing’s repeated efforts at shaming and stonewalling have imposed an undoubted cost on its political standing in the region. Moreover, China’s signing of UNCLOS obligated Beijing to compulsory third party determination, though it is not the only power contesting this commitment.
Beijing’s repeated efforts at shaming and stonewalling have imposed an undoubted cost on its political standing in the region.
The fundamental weakness of China’s policy defense was its reliance on various “historic claims” to most of the maritime expanses of the South China Sea, including areas that directly encroached on the sovereign territory of various neighboring states. Its claims have frequently been encapsulated in the nine-dash line, an ill-defined geographic demarcation initially appearing in a map prepared by cartographers in the Republic of China in 1947 (i.e., prior to the victory of the Chinese Communist Party in 1949). But China’s sweeping claims to “unequivocal sovereignty” failed to address the multiple layers of ambiguity and conflicting judgments found in various policy documents released by Beijing.
Moreover, the arbitration panel emphasized from the outset that its authority did not extend to determinations over sovereignty. Rather, its mandate (distilled from a list of 15 claims in Manila’s original brief) focused on Chinese claims to the continental shelf and to exclusive economic zones extending from land features, reefs, and rocks over which China claimed indisputable sovereignty. The Philippines also contested Chinese activities that infringed on the rights of Filipino fishermen, Beijing’s construction of artificial islands, and the operation of Chinese law enforcement vessels in various shoals.
Even if Beijing persists in its angry defiance of the arbitration panel’s findings and continues to contest their legitimacy, the sweeping character of the rulings (in a document exceeding 500 pages in length) is impossible to deny. UNCLOS specifically states that land features not deemed an island are entitled only to a 12-mile territorial sea, not to an exclusive economic zone or to a continental shelf. In an especially controversial finding, the panel concluded that Itu Aba (known in Chinese as Taiping Island and the largest land feature in the Spratly Island group and controlled by Taiwan) was not an island; this has been strongly contested by Taipei as well as by Beijing.
The biggest looming issues will focus on how China opts to respond.
The biggest looming issues will focus on how China opts to respond in words ... In a long-awaited ruling prepared under the United Nations Convention on the Law of the Sea (UNCLOS), an arbitration panel has handed an unequivocal victory to the Philippines in its case against China, which it first filed in early 2013.https://www.brookings.edu/2016/07/12/what-does-the-south-china-sea-ruling-mean-and-whats-next/What does the South China Sea ruling mean, and what’s next?http://webfeeds.brookings.edu/~/171790618/0/brookingsrss/topics/southeastasia~What-does-the-South-China-Sea-ruling-mean-and-what%e2%80%99s-next/
http://webfeeds.brookings.edu/~/171790618/0/brookingsrss/topics/southeastasia~What-does-the-South-China-Sea-ruling-mean-and-what%e2%80%99s-next/#respondMon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=174088&preview_id=174088The much-awaited rulings of the Permanent Court of Arbitration in the Hague—in response to the Philippines’ 2013 submission over the maritime entitlements and status of features encompassed in China’s expansive South China Sea claims—were released this morning. Taken together, the rulings were clear, crisp, comprehensive, and nothing short of a categorical rejection of Chinese claims.

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The much-awaited rulings of the Permanent Court of Arbitration in The Hague—in response to the Philippines’ 2013 submission over the maritime entitlements and status of features encompassed in China’s expansive South China Sea claims—were released this morning. Taken together, the rulings were clear, crisp, comprehensive, and nothing short of a categorical rejection of Chinese claims.

Among other things, the court ruled China’s nine-dash line claim to the South China Sea invalid because of Beijing’s earlier ratification of the United Nations Convention on the Law of the Sea (UNCLOS). In a move that surprised many observers, the court also ventured a ruling on the status of every feature in the Spratly Islands, clarifying that none of them were islands and hence do not generate an exclusive economic zone (EEZ). Significantly, it ruled that Mischief Reef, which China has occupied since 1995, and Second Thomas Shoal, where China has blockaded Philippine marines garrisoned on an old vessel that was deliberately run aground there, to be within the EEZ of the Philippines.

In the neighborhood

Now that the rulings have been made, what are the implications and way forward for concerned states?

For the Philippines, the legal victory presents a paradoxical challenge for the new government. Prior to the ruling, newly-elected President Rodrigo Duterte indicated on several occasions that he was prepared to depart from his predecessor’s more hardline position on the South China Sea to engage Beijing in dialogue and possibly even joint development. He even hinted that he would tone down Manila’s claim in exchange for infrastructure investment. Given that the ruling decisively turns things in Manila’s favor, it remains to be seen whether the populist Duterte administration would be able to sell the idea of joint development of what are effectively Philippine resources without risking a popular backlash. This will be difficult but not necessarily impossible, given that the Philippines would likely still require logistical and infrastructural support of some form or other for such development projects.

Since the submission of the Philippine case in 2013, China has taken the position of “no recognition, no participation, no acceptance, and no execution,” as described by Chinese professor Shen Dingli. Beijing continues to adhere to this position, and is likely to dig in its heels given the comprehensive nature of the court’s rejection of China’s claims. This, in turn, will feed the conspiracy theories swirling around Beijing that the court is nothing but a conspiracy against China.

[T]he rulings are likely to occasion intense internal discussions and debates within the Chinese leadership as to how best to proceed.

Not surprisingly, in defiance of the ruling, China continues to insist on straight baselines and EEZs in the Spratlys. Away from the glare of the media however, the rulings are likely to occasion intense internal discussions and debates within the Chinese leadership as to how best to proceed. Many analysts have the not-unfounded concern that hawkish perspectives will prevail in this debate, at least in the short term—fed by the deep sensibilities to issues of security and sovereignty, and a (misplaced) sense of injustice. This would doubtless put regional stability at risk. Instead, China should do its part to bring the Code of Conduct it has been discussing with ASEAN to a conclusion as a demonstration of its commitment to regional order and stability, and the peaceful settlement of disputes. Beijing should also continue to engage concerned states in dialogue, but these dialogues cannot be conducted on the premise of Chinese “unalienable ownership” of and “legitimate entitlements” in the South China Sea.

ASEAN will be hosting several ministerial meetings later this month, and the ruling will doubtless be raised in some form or other, certainly in closed-door discussions. For ASEAN, the key question is whether the organization can and will cobble together a coherent, consensus position in response to the ruling, and how substantive the response will be (they should at least make mention of the importance of international law to which all ASEAN states subscribe). For now though, it is too early to tell.

U.S. policy

As an Asia-Pacific country, the United States has set great stock in the principle of freedom of navigation, and has articulated this as a national interest with regards to the South China Sea. There are however, three challenges for the United States as it proceeds to refine its policy in the region:

First, going by the attention it has commanded in Washington, it appears that the South China Sea issue has already become the definitive point of reference of America’s Southeast Asia policy. Southeast Asian states, on the other hand, have expressed their desire precisely that the South China Sea issue should not overshadow or dominate the regional agenda. Hence, even as the United States continues to be present and engaged on South China Sea issues in the region, equal attention, if not more, should be afforded to broaden the scope of their engagement.

Second, in pushing back Chinese assertiveness in the South China Sea, the United States must be careful not to inadvertently contribute to the militarization of the region. There is talk about the deployment of a second carrier group to the region, and the U.S.S. John C. Stennis and U.S.S. Ronald Reagan are already patrolling the Philippine Sea. On the one hand, this is presumed to enhance the deterrent effect of the American presence in the region. Yet on the other hand, Washington should be mindful of the fact that China’s South China Sea claim is also informed by a deep sense of vulnerability, especially to the military activities that the United States conducts in its vicinity.

Finally, in its desire to reassure the region, the United States has sought to strengthen its relations with regional partners and allies. This is necessary, and it is welcomed. At the same time however, Washington should also ensure that this strengthening and deepening of relations is undergirded by an alignment of interests and shared outlooks. This cannot, and should not, be assumed.

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http://webfeeds.brookings.edu/~/171790618/0/brookingsrss/topics/southeastasia~What-does-the-South-China-Sea-ruling-mean-and-what%e2%80%99s-next/feed/0UncategorizedThe much-awaited rulings of the Permanent Court of Arbitration in The Hague—in response to the Philippines’ 2013 submission over the maritime entitlements and status of features encompassed in China’s expansive South China Sea claims—were released this morning. Taken together, the rulings were clear, crisp, comprehensive, and nothing short of a categorical rejection of Chinese claims.
Among other things, the court ruled China’s nine-dash line claim to the South China Sea invalid because of Beijing’s earlier ratification of the United Nations Convention on the Law of the Sea (UNCLOS). In a move that surprised many observers, the court also ventured a ruling on the status of every feature in the Spratly Islands, clarifying that none of them were islands and hence do not generate an exclusive economic zone (EEZ). Significantly, it ruled that Mischief Reef, which China has occupied since 1995, and Second Thomas Shoal, where China has blockaded Philippine marines garrisoned on an old vessel that was deliberately run aground there, to be within the EEZ of the Philippines.
In the neighborhood
Now that the rulings have been made, what are the implications and way forward for concerned states?
For the Philippines, the legal victory presents a paradoxical challenge for the new government. Prior to the ruling, newly-elected President Rodrigo Duterte indicated on several occasions that he was prepared to depart from his predecessor’s more hardline position on the South China Sea to engage Beijing in dialogue and possibly even joint development. He even hinted that he would tone down Manila’s claim in exchange for infrastructure investment. Given that the ruling decisively turns things in Manila’s favor, it remains to be seen whether the populist Duterte administration would be able to sell the idea of joint development of what are effectively Philippine resources without risking a popular backlash. This will be difficult but not necessarily impossible, given that the Philippines would likely still require logistical and infrastructural support of some form or other for such development projects.
Since the submission of the Philippine case in 2013, China has taken the position of “no recognition, no participation, no acceptance, and no execution,” as described by Chinese professor Shen Dingli. Beijing continues to adhere to this position, and is likely to dig in its heels given the comprehensive nature of the court’s rejection of China’s claims. This, in turn, will feed the conspiracy theories swirling around Beijing that the court is nothing but a conspiracy against China.
[T]he rulings are likely to occasion intense internal discussions and debates within the Chinese leadership as to how best to proceed.
Not surprisingly, in defiance of the ruling, China continues to insist on straight baselines and EEZs in the Spratlys. Away from the glare of the media however, the rulings are likely to occasion intense internal discussions and debates within the Chinese leadership as to how best to proceed. Many analysts have the not-unfounded concern that hawkish perspectives will prevail in this debate, at least in the short term—fed by the deep sensibilities to issues of security and sovereignty, and a (misplaced) sense of injustice. This would doubtless put regional stability at risk. Instead, China should do its part to bring the Code of Conduct it has been discussing with ASEAN to a conclusion as a demonstration of its commitment to regional order and stability, and the peaceful settlement of disputes. Beijing should also continue to engage concerned states in dialogue, but these dialogues cannot be conducted on the premise of Chinese “unalienable ownership” of and “legitimate entitlements” in the South China Sea.
ASEAN will be hosting several ministerial meetings later this month, and ... The much-awaited rulings of the Permanent Court of Arbitration in The Hague—in response to the Philippines’ 2013 submission over the maritime entitlements and status of features encompassed in China’s expansive South China Sea ... https://www.brookings.edu/media-mentions/12-law-order-south-china-sea-kuok/12 law order south china sea kuokhttp://webfeeds.brookings.edu/~/171790620/0/brookingsrss/topics/southeastasia~law-order-south-china-sea-kuok/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=182225&post_type=media-mention&preview_id=182225

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https://www.brookings.edu/opinions/vietnams-evolving-role-in-asean-from-adjusting-to-advocating/Vietnam’s evolving role in ASEAN: From adjusting to advocatinghttp://webfeeds.brookings.edu/~/171790622/0/brookingsrss/topics/southeastasia~Vietnams-evolving-role-in-ASEAN-From-adjusting-to-advocating/
Mon, 30 Nov -0001 00:00:00 +0000http://www.brookings.edu?p=158580&post_type=opinion&preview_id=158580While there is a growing tendency to discredit the Association of Southeast Asian Nations (ASEAN), Dr. Huong Le Thu argues that there is a need to have a more granular look at the intra-ASEAN dynamics. Vietnam emerges as an increasingly important member and may have the potential to reinvigorate the association.

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ASEAN’s repetitive failure in the South China Sea matters

The controversial China-ASEAN Summit in Kunming on June 16th cast a shadow on the Association of Southeast Asian Nations’ (ASEAN) unity, centrality, and relevance. This is not the first time that this group of 10 has been tested in its interaction with China. From the ‘signature’ failure of the 2012 Cambodian chairmanship of ASEAN to the more recent four-point consensus, in all of those cases, the South China Sea disputes were the key point of pressure, whether mentioned or explicitly omitted.

While there is a growing tendency to criticize and even discredit ASEAN as a whole, I argue that there is a need to have a more granular look at the intra-ASEAN dynamics. The need to keep ASEAN relevant, it seems, is better understood among some members than others. Vietnam emerges as one of the increasingly important members who may have potential in reinvigorating the association.

There are a number of reasons why at this junction of time, Vietnam’s position has become more critical. First of all, the disputes in the South China Sea—a thorn in regional unity and stability—invoke different interests from different actors. Vietnam is one of the most active claimants. It is also a proponent of peaceful and rule-based dispute resolution and has consistently emphasized ASEAN’s central role in facilitating regional dispute management, and hence supports the association’s centrality.

Through the maritime disputes Vietnam emerges as “the most capable and determined Southeast Asian state to challenge China’s claims in the South China Sea,” even though it was the Philippines that has pursued international legal measures.

As the region’s geopolitics shift, the Vietnamese role in determining the security play-out in the South China Sea is growing. Because of national security interests and an immediate sense of threat from China, Hanoi is even more concerned than, e.g., Manila about the implications of a more divided region.

Second of all, while Southeast Asia has in recent years experienced a wave of relatively turbulent political developments, Thailand, Malaysia, and Myanmar have been more preoccupied with domestic politics at the expense of regional matters. The generational change of leaders favoring anti-elitist political outsiders in the region’s largest democracies, Indonesia and the Philippines, has created a disruption in the commitment to ASEAN and the spirit of regional collaboration that the association’s founding fathers cultivated. The political landscape in Vietnam appears to be stable in comparative perspective, giving it consistency in the regional outlook.

Third, Vietnam’s membership in ASEAN has been evolving and dynamic rather than static, suggesting it might have further stages of development. As a late-comer, Vietnam has not only socialized quickly into the Southeast Asian community, but it has also proven capable of taking a more central role in the association. The 2010 presidency was a confirmation of Vietnam’s maturing membership.

With rapid economic development Vietnam is catching up to the economies of “Tier 1” ASEAN members (the original founding members), as opposed to “Tier 2″countries and “CLMV” (Cambodia, Laos, Myanmar, Vietnam), now increasingly referred to as “CLM.” Given its hybrid position between ASEAN Tier 1 and Tier 2, Vietnam is well positioned to be empathic to, included in, and even a bridge between each of those sub-groups.

Hanoi’s strategic imperatives

In the context of great power rivalry and its undermining effects on ASEAN unity and centrality, Vietnam’s position gains additional importance. Hanoi recognizes the long-term dangers of China’s hegemonic ambitions, which jeopardize Southeast Asian multilateralism. More importantly, Hanoi, pressed by security concerns posed by China, appreciates not only the potential of ASEAN but also the “ASEAN-Plus partnerships” networks. After all, it was under Vietnam’s chairmanship that the ASEAN Defence Ministers Meeting Plus (ADMM Plus) was inaugurated in 2010.

For a long time, ASEAN provided Vietnam with a perfect venue to socialize into the international community and re-emerge from the isolation that it fell into in the late 1970s. Twenty years after joining ASEAN, Vietnam is arguably the most active player in the region in terms of foreign policy. It boasts a dynamically expanding network of comprehensive and strategic partnerships with Southeast Asian neighbors as well as extra-regional dialogue partners of ASEAN. Vietnam’s great powers’ diplomacy has gained momentum since the oil rig HYSY-981 crisis in mid-2014, after which rapprochement with the United States sped up significantly.

Other powers with vested interests in the regional power balance, like Japan and India, are also keen on deepening ties with Hanoi. Yet, ASEAN has remained as one of the main pillars of Vietnam’s foreign policy. Having a Vietnamese diplomat, Le Luong Minh, taking up the role of the incumbent ASEAN secretary general helps Hanoi learn more about ASEAN institutions and regional diplomatic practice and embrace a more mature phase of membership. But leveraging the know-how of Minh, the first Vietnamese (and the first from the CLMV) to take such a position, is a sensitive and questionable matter given the neutrality of the position and extra-rigid scrutiny that China has placed on him because of his nationality. The resistance toward making regional disputes “ASEAN disputes” is well understood in Hanoi, which has neither the intention nor the capacity to turn a regional institution into a “proxy” vis-à-vis China.

Stay consistent, stay relevant!

There are a number of challenges ahead that will require long-term efforts to further consolidate Vietnam’s position in ASEAN. For now, it is not likely to pursue a leadership position similar to that Indonesia has had in the region—although President Joko Widodo’s current “domestic turn” invites questions regarding Jakarta’s regional role—partially because Hanoi is not comfortable with the role of “holding the flag.”

This is linked to the overwhelming deficit of strategic trust apparent not only in Southeast Asia but across the Asia-Pacific. A fear of not being backed up by the other fellow ASEAN states prevents Hanoi from “sticking its neck out”—a “play-it-safe mentality” that is not alien to other Southeast Asian neighbors either. It is also rather unlikely that other members would allow such “hierarchal” changes within ASEAN—yet another reflection of this trust deficit.

However, if Hanoi wants to further advance its strategic position in regional politics, it should reconsider its risk-averse mentality. China’s push for the four-point consensus and 10-point consensus gave a “flavor” of further rupture in Southeast Asia. Fearing Beijing’s continuous disregard for international norms in regional disputes, Vietnam and ASEAN members should firmly and unitedly stick to international law and a rule-based approach to conflict resolution.

Particularly concerned about Beijing’s possible disrespect for the Permanent Court of Arbitration’s imminent ruling on the Philippines’ case, Vietnam should be consistent in adhering to the regional spirit and overcome hesitations toward cooperation with Southeast Asian neighbors. As much as it is challenging to revive institutional enthusiasm among the other nine ASEAN members, Vietnam needs to inspire its neighbors with consistency in resisting China’s coercion and in doing so remind them that these efforts must be collective.

Hanoi needs to take a calculated risk that would actually benefit its strategy of greater risk management. While there is stronger urgency on Hanoi’s side, it is in all Southeast Asia’s interests in the long run to keep ASEAN strong and committed to the common security environment.

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ASEAN’s repetitive failure in the South China Sea matters
The controversial China-ASEAN Summit in Kunming on June 16th cast a shadow on the Association of Southeast Asian Nations’ (ASEAN) unity, centrality, and relevance. This is not the first time that this group of 10 has been tested in its interaction with China. From the ‘signature’ failure of the 2012 Cambodian chairmanship of ASEAN to the more recent four-point consensus, in all of those cases, the South China Sea disputes were the key point of pressure, whether mentioned or explicitly omitted.
While there is a growing tendency to criticize and even discredit ASEAN as a whole, I argue that there is a need to have a more granular look at the intra-ASEAN dynamics. The need to keep ASEAN relevant, it seems, is better understood among some members than others. Vietnam emerges as one of the increasingly important members who may have potential in reinvigorating the association.
There are a number of reasons why at this junction of time, Vietnam’s position has become more critical. First of all, the disputes in the South China Sea—a thorn in regional unity and stability—invoke different interests from different actors. Vietnam is one of the most active claimants. It is also a proponent of peaceful and rule-based dispute resolution and has consistently emphasized ASEAN’s central role in facilitating regional dispute management, and hence supports the association’s centrality.
Through the maritime disputes Vietnam emerges as “the most capable and determined Southeast Asian state to challenge China’s claims in the South China Sea,” even though it was the Philippines that has pursued international legal measures.
As the region’s geopolitics shift, the Vietnamese role in determining the security play-out in the South China Sea is growing. Because of national security interests and an immediate sense of threat from China, Hanoi is even more concerned than, e.g., Manila about the implications of a more divided region.
Second of all, while Southeast Asia has in recent years experienced a wave of relatively turbulent political developments, Thailand, Malaysia, and Myanmar have been more preoccupied with domestic politics at the expense of regional matters. The generational change of leaders favoring anti-elitist political outsiders in the region’s largest democracies, Indonesia and the Philippines, has created a disruption in the commitment to ASEAN and the spirit of regional collaboration that the association’s founding fathers cultivated. The political landscape in Vietnam appears to be stable in comparative perspective, giving it consistency in the regional outlook.
Third, Vietnam’s membership in ASEAN has been evolving and dynamic rather than static, suggesting it might have further stages of development. As a late-comer, Vietnam has not only socialized quickly into the Southeast Asian community, but it has also proven capable of taking a more central role in the association. The 2010 presidency was a confirmation of Vietnam’s maturing membership.
With rapid economic development Vietnam is catching up to the economies of “Tier 1” ASEAN members (the original founding members), as opposed to “Tier 2'countries and “CLMV” (Cambodia, Laos, Myanmar, Vietnam), now increasingly referred to as “CLM.” Given its hybrid position between ASEAN Tier 1 and Tier 2, Vietnam is well positioned to be empathic to, included in, and even a bridge between each of those sub-groups.
Hanoi’s strategic imperatives
In the context of great power rivalry and its undermining effects on ASEAN unity and centrality, Vietnam’s position gains additional importance. Hanoi recognizes the long-term dangers of China’s hegemonic ambitions, which jeopardize Southeast Asian ... ASEAN’s repetitive failure in the South China Sea matters
The controversial China-ASEAN Summit in Kunming on June 16th cast a shadow on the Association of Southeast Asian Nations’ (ASEAN) unity, centrality, and relevance.